Clarence Thomas gives Supreme Court history lesson

The U.S. Supreme Court’s least loquacious member had much to say -- more than any of his fellow justices, actually -- about a recent landmark hearing.

Justice Clarence Thomas criticized some of his colleagues for asking too many questions during the three-day oral arguments held in late March on the federal government’s controversial health care law. A decision is expected in June.

"I don’t see where that advances anything," Thomas, a Savannah-area native, said of the questions while he was speaking at the University of Kentucky. "Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen."

Thomas, who’s been on the bench since 1991 and is known for rarely asking questions during oral arguments, went on.

"I don’t like to badger people," the justice was quoted by The Associated Press. "These are not children. The court traditionally did not do that. I have been there 20 years. I see no need for all of that. Most of that is in the briefs, and there are a few questions around the edges."

We wondered if Thomas was accurate when he argued that the Supreme Court didn’t "traditionally" ask many questions or "badger" lawyers arguing cases before them. Thomas wasn’t specific about the time frame he meant when he said "traditionally." A Supreme Court spokeswoman said she was unable to help us clarify because she did not have a transcript of Thomas’ remarks.

The court’s online transcripts of oral arguments go back only to 2000, so we recognized it would be difficult to make an accurate comparison to cases dating back decades. Instead, PolitiFact Georgia talked to several Supreme Court experts to get their thoughts about the Thomas claim. They said Thomas has a good argument, but noted some changes over the years that must be considered to fully understand his statement.

The court currently gives each side about 30 minutes to argue its case. In the court’s early days, oral arguments would sometimes last hours -- or days. In 1849, the court limited oral arguments to two hours per side. The court had larger caseloads and needed time to hear the additional cases.

In 1925, the court contracted the time again, to one hour for each side. In 1970, the court cut the time limit again, to its present limit of 30 minutes for each side.

"That was a function of them hearing so many cases," said Emory University political science professor Tom Clark, the author of a book on judicial independence.

Clark was dubious of Thomas’ claim, saying the justice was "being a good politician" by not specifying what he meant by "traditionally" and not considering some of the context of changes in how the court operates.

Timothy Johnson, a widely respected expert on Supreme Court oral arguments, also noted those changes to us via email. However, he thought Thomas was correct.

"The justices [say in the 19th century] did not ask many questions. But this was during the time before briefs were filed. Rather, the arguments were more like the British system where all arguments were presented right in open court. Thus, without briefs the justices had to listen to find out the arguments rather than try to clarify them from the briefs or inject their own thoughts," said Johnson, a University of Minnesota law school professor who wrote a book in 2004 on Supreme Court oral arguments.

Johnson also co-authored a 2009 study that explored whether the court gives hints of how the justices will rule on a case by the number of questions they ask each side. In general, they found, the side asked more questions typically loses.

Johnson conducted research on how many times each justice spoke between 1998 and 2007. Thomas spoke 34 times, an average of less than four times a year. The next lowest on the list was Justice Samuel Alito, who spoke 816 times. Compare that to Justice Antonin Scalia, who spoke 18,122 times.

Thomas has maintained the same rationale to explain why he doesn’t speak much during oral arguments. It’s rude, he says. Kathleen Burch, who teaches constitutional law at John Marshall Law School in Atlanta, said most of the justices "seem to want to jump in more" in the last 15 to 20 years. She guessed that is because more of them have served as appeals court judges, where they are more aggressive in questioning attorneys. Elena Kagan is the only current justice who did not serve as an appeals court judge.

"I think historically it would be true," Burch, who has taught at John Marshall for nine years, said of Thomas’ statement. "I think it’s becoming more common to ask questions than be quiet."

Thomas, the third-longest tenured justice on the court, is apparently old school. The experts we interviewed mostly agreed that it’s fair to say that justices ask more questions today than they did a century ago or as recently as 40 years ago. They note that changes such as being provided with briefs before oral arguments have made the justices better versed on cases beforehand -- and perhaps more likely to ask questions. We considered that a minor point that doesn’t change our impression of Thomas’ statement. Our rating: True.

Telephone interview with Emory University law school professor Tom Clark, April 9, 2012

Telephone interview with John Marshall law school professor Kathleen Burch, April 10, 2012

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